Free Brief - District Court of Colorado - Colorado

Case 1:00-cr-00531-WYD

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Criminal Action No. 1:00-cr-000531-WYD UNITED STATES OF AMERICA, Plaintiff, v. WILLIAM CONCEPCION SABLAN, Defendant.
_____________________________________________________________________________

William Sablan's Memorandum Brief Regarding The Phase III Hearing Scheduled For November 6-9, 2006 ________________________________________________________________________ Counsel for William Sablan ("William") submit this memorandum brief to assist the Court and counsel in their preparation for the Phase III hearing scheduled to begin on November 6, 2006. That hearing relates to the government's charge of future dangerousness as a nonstatutory aggravating factor in its Notice of Intent to Seek the Death Penalty ("NOI"). The NOI alleges that "[t]he defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." (Document 1849 at 5). Although it may become necessary to litigate each and every incident alleged by the government, as well as its supporting evidence, counsel for William believe that it

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may prove more efficient if the Court and counsel were to first address the broader issues, some of which overlap, that are still outstanding. By doing so, it is likely that the examination of the individual incidents will be narrowed, if not eliminated. William's submission of this memorandum brief should not be interpreted as a waiver of any of the specific individual objections he has set out in relation to each and every one of the government's allegations in his responses.1 (Documents 1861; 1903). Context of Prison Setting In this case, the only alternative to a death sentence, is a sentence of life imprisonment without possibility of release. In view of that fact, William moved to strike all non-institutional incidents the government alleged in support of future dangerousness on the basis that they are inadequately related to whether William will be a future danger to the lives and safety of inmates and staff in prison. (Document 1684). In its July 6, 2006 Order on Phase III motions, the Court granted William's motion "to the extent it seeks a ruling that future dangerousness must be evaluated in the context

Federal courts have evaluated nonstatutory aggravating factors and their supporting evidence for relevancy, heightened reliability, and whether their unfair prejudice, and potential for confusing the issues and/or misleading the jury outweighs its probative value. The incidents the government has alleged in support of future dangerousness, therefore, must be relevant to the question of who should live and who should die; they must be of sufficient severity to be worthy of jury consideration in its life or death decision. The evidence must also meet the requirement of heightened reliability, that is, the evidence must be accurate and provide information that is timely and appropriate for consideration. See William Sablan's Memorandum Brief In Support Of His Motions To Strike Incidents Listed By The Government In Support Of Its Nonstatutory Aggravating Factor Of Future Dangerousness. (Document 1680 at 3-8). William's responses incorporate this type of analysis as to all of the government's alleged incidents. 2

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of life in a prison setting." (Document 1836 at 14). Nevertheless, the government continues to allege prior convictions, unrelated to an institutional setting, in support of future dangerousness.2 William, on the other hand, maintains that the government's arguably most relevant evidence of future dangerousness is the charged offense and the charged statutory aggravating factor, "previous conviction of violent felony involving a firearm", which relates to conduct inside a Saipan detention facility on March 9, 1999. (Documents 1843; 1884; 1861 at 30). It would be appropriate, as well as consistent with its earlier ruling, if the Court were to strike the NOI's non-institutional incidents alleged in support of future dangerousness. Those incidents are alleged in subsections (a), (b), (c), and (d) of NOI ¶ C 1. 3 (Document 1849 at 5). This not only would result in a more focused November, 2006 hearing, but also and more importantly, would render the actual penalty phase less cumbersome and more likely to produce a reliable result.

The one exception is the incident alleged in NOI ¶ C 1 (e), which is listed in the amended proffer as # 5. (Document 1884 at 17). It relates to CNMI Case No. 97-133, a 1998 misdemeanor assault conviction. The conviction was a result of a plea agreement. The stipulated factual basis was: "on February 8, 1997, while a prisoner in the detention unit of the Divisions of Corrections, the Defendant confronted Office[ sic] Joaquin K. Camacho. During that confrontation, the Defendant inflicted a minor cut on Officer Camacho's thumb by use of a small piece of metal." (Gov. Exh. 4A at 2). In William's responses, he has objected to the use of this incident on the grounds it is insufficiently relevant to future dangerousness due to the dramatic discrepancy in the security levels of Saipan and United States facilities, it is insufficiently severe to be relevant to the life or death decision, and allowing the proffered testimony, which goes beyond the stipulated facts, would deny him the benefit of his plea bargain. These subparagraphs relate to CNMI convictions in Case No.'s 84-69; 84-68; 85-49; and 96-235 listed in the amended proffer as ## 1, 2, 3, and 4. (Document 1884). 3
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Criminal Conduct Required / Threats Insufficient As noted above, the NOI defines future dangerousness in the following terms: "[t]he defendant is likely to commit criminal acts of violence in the future which would be a continuing and serious threat to the lives and safety of others." (Document 1849 at 5) (emphasis added). Based on the language of the government's allegation, William moved to strike institutional setting incidents that did not involve criminal conduct, but merely reflected violations of the rules and regulations of William's custodians. (Documents 1685; 1765). In its July 6, 2006 Order on Phase III motions, the Court denied the motion, "to the extent it seeks a per se rule that such incidents are inadmissible. . . . [but] without prejudice to the extent that Defendant seeks a ruling as to the admissibility of the specific incidents." (Document 1836 at 31). William renews his objections to the alleged institutional setting incidents on the grounds that they reflect rule violations, not criminal conduct. Moreover, to the extent criminal conduct was arguably involved, it is conduct directed at property and therefore

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did not constitute a serious threat to the lives and safety of others.4 The incidents include the following:

! destroying/altering a security device (Document 1884 # 6; Gov. Exh. 6) ! threatening another with bodily harm (Document 1884 # 7; Gov. Exh.'s
7A and 7B)

! ramming a cell door with a desk / threatening another with bodily harm
(Document 1884 # 8; Gov. Exh. 8)

! threatening another with bodily harm (Document 1884 # 9; Gov. Exh. 9) ! "assault" (with coffee) / threatening another with bodily harm (Document
1884 # 10; Gov. Exh. 10)

! assault / refusing to obey an order (Document 1884 #11; Gov. Exh.'s 11A
and 11B)

! threatening staff / tempering or interfering with any security device /
failure to follow safety regulations (Document 1884 # 12; Gov. Exh.'s 12A and 12B) In relation to these incidents, William also filed a motion to strike the allegations

It is without question that the government must prove its aggravating factors, including future dangerousness, beyond a reasonable doubt. 18 U.S.C. § 3593(c). When discussing the institutional incidents alleged in support of future dangerousness, the government has stated that "[a]ll of the incidents offered in support of this factor are merely pieces of the puzzle. None of them standing alone is sufficient to prove future dangerousness, but all of them taken together reveal a pattern of conduct which should not be kept from the jury." (Document 1736 at 22). This cumulative approach is wrong-headed. Each incident is to be independently evaluated for its relevancy and reliability in relation for future dangerousness. If it does not meet the mark, it is simply inadmissible; its substantive quality for purposes of capital sentencing is not enhanced by the mere fact that other incidents are alleged. 5

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of mere threats of violence. (Documents 1683 at 10-12; 1762 at 4). In its July 6, 2006 Order, the Court stated: "There is conflicting authority as to the admissibility of threats of violence without criminal conduct. I do not believe that threats should be excluded on a per se basis. Instead, I will decide the admissibility of the specific threats at issue at the . . . hearing when I hear them in context." (Document 1836 at 17). The Court now has before it the government's proffers and exhibits. Upon review, it is readily apparent that these threats reflect warped bravado in that they are illusory ­ William has no access to the person(s) whom he threatens. These incidents are simply not worthy of jury consideration for purposes of determining whether William should live or die. Mental Disease and/or Defect When evaluating the institutional incidents, it is important that the Court keep in mind that many of them are more indicative of William's mental illness and the Bureau of Prisons' refusal to treat him, than they are of future dangerousness. We presently know that when properly medicated, William is cooperative and can more easily manage the behavior caused by his mental illness. This is illustrated by the fact that the last proffered incident occurred on May 29, 2001. Under these circumstances, it would be fundamentally unfair and a violation of due process to use these incidents as grounds for a sentence of death. Additionally, these incidents demonstrate that BOP staff can handle William without harm befalling themselves or other inmates. Proving Prior Convictions
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All of the non-institutional incidents and one of the institutional incidents alleged in support of future dangerousness are prior CNMI convictions. William contends that when the government attempts to establish a prior conviction, its evidence should be limited to court documents and statutory definitions of the offense(s) of conviction; protracted presentations of testimony about the conduct underlying the charges should not be allowed, particularly when such testimony, by going beyond the elements of the offense of conviction, would deny the defendant of the benefit of his plea bargain. (Documents 1686; 1766). In its July 6, 2006 Order, the Court ruled that "a categorical approach to § 3592(c) must be denied." (Document 1836 at 24). It also rejected such an approach in relation to the nonstatutory aggravating factor. (Id. at 25). It delayed, however, consideration of plea-bargained convictions, stating that "William Sablan's argument that admission of the underlying facts as to convictions entered as the result of a plea agreement is unfair because it denies a defendant the benefit of his bargain . . . needs to be addressed in context in connection with the actual convictions being considered." (Id.). William has filed a motion for reconsideration of the first aspect of the Court's ruling. (Document 1863). The government has filed a response. (Document 1908). Because the NOI alleges six prior convictions ­ one as a statutory aggravator and five in support of future dangerousness, it would be appropriate for the Court to rule on the motion for reconsideration first. If it grants the motion, the plea-agreement issue and all the evidentiary objections to the proffered testimony relating to prior convictions would
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be eliminated. In any event, the pleadings and exhibits presently before the Court demonstrate that the additional testimony the government proposes to introduce relating to three CNMI cases would deny the defendant the benefit of his plea agreements. Those include CNMI Case No.'s: 84-69, 84-68, and 97-133. In all three, the plea agreements provide for the dismissal of counts (Gov. Exh.'s 1A, 1A, and 4A) whereas the proffered testimony describes conduct beyond the offense of conviction, including conduct relating to dismissed counts. (Document 1884 # # 1, 2, and 5; Gov. Exh.'s 1F, 1G and 4D). In ruling, the Court should not be swayed by the government's latest argument, which is inconsistent with some of its previous arguments. The government has previously argued that CNMI convictions are sufficiently reliable for consideration in capital sentencing. (Document 1729). It even claimed that they constituted State convictions. (Document 1753). But now it claims that the CNMI plea-agreement convictions are "uninformative and potentially misleading records of conviction" that undermine the determination of "the truth about the defendant's character and conduct." (Document 1908 at 6). The hypocrisy of this statement is blatant. It is doubtful that "the truth" will come from the testimony of Victor Pangelinan and George Ramnani, who would be testifying in 2007 about events occurring in 1984 (cases 84-69 and 84-68), particularly in view of the fact that there are no records of their contemporaneous statements upon which to cross-examine them. The testimony of Officers Ralph Rangamar and Alex Matteo is similarly problematic because their 2007 testimony would
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be about events occurring in 1997 (case 97-133). Application of Crawford In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the introduction of out-of-court testimonial statements against the defendant violates his rights under the Confrontation Clause of the Sixth Amendment unless the declarant is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine the declarant. Testimonial statements include prior testimony at a former trial, as well as statements taken by the police in the course of interrogation, a term to be understood in its colloquial, rather than any technical sense. Id. at 68; 53 n. 4. Thus, any time the purpose of police questioning is to determine what happened in the past for purposes of investigating a crime, the responses constitute testimonial statements. Davis v. Washington, 126 S. Ct. 226, 2278 (2006). William has taken the position that Crawford applies throughout the penalty phase. (Document 1882; 1903 at 5-12). The government agrees that Crawford applies, but claims that it does so only for purposes of the eligibility phase, not the selection phase. (Document 1884 at 2-4). For purposes of eligibility, the government has alleged the statutory aggravating factor ­ prior conviction of a violent felony involving a firearm ­ relying on U.S. District Court Case No. 99-00018. Even if the Court adopts the government's position, the following proffered evidence is inadmissible for purposes of establishing William's eligibility:
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! the proffered testimony of ATF SA Gil Bartosh describing testimonial
statements he obtained by questioning detainees, whom William has not had the opportunity to cross-examine (Document 1884 at 31-34)

! the FBI 302's and ATF affidavits reflecting the testimonial statements of
those detainees, including: · FBI 302 of Zhou Bo (Gov. Exh. 5E) · ATF affidavit of Saddy Camaso Cuarteron (Gov. Exh. 5F) · ATF affidavit of Cui Xing Hao (Gov. Exh. 5G) · ATF affidavit of Luis Deleon Guerrero Camacho (Gov. Exh. 5H) For purposes of selection, the government has alleged future dangerousness as a nonstatutory aggravating factor. Two of the CNMI prior convictions alleged in support of future dangerousness involved jury trials, cases 85-49 and 96-235. In relation to 85-49, the government's initial proffer claimed that it anticipated introducing audiotapes and transcripts of trial testimony. (Document 1843 at 6). Its amended proffer, however, noted that the audiotapes could not be located, so it included only the Judgment and Sentence, which presents no Crawford issues. (Document 1884 at 9; Gov. Exh. 2A). The other jury trial, Case 96-235, as proffered by the government presents Crawford issues. Mr. Nemoto and Mr. Ono, the alleged victims, gave testimonial statements both in terms of responding to police questioning about the robbery (in 1996 and in 2006), and in terms of providing trial testimony. The government is seeking to introduce those testimonial statements, yet it has not established that the declarants are
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unavailable. In fact, both men have agreed to be deposed in Japan. (Document 1843 at 11). Thus, without a deposition during which the defense can cross-examine them about their prior statements and testimony, the following evidence would be inadmissible under Crawford if the Court applies Crawford to the selection phase:

! police interviews of Mr. Nemoto and Mr. Ono (Gov. Exh. 3H) ! the tape and transcript of the direct examination of Mr. Nemoto (Gov.
Exh. 3E and 3E-1)

! "recent interviews" of Mr. Ono and Mr. Nemoto (Document 1884 at 16;
no corresponding exhibit). But even if the Court does not apply Crawford, this entire incident should be stricken. As discussed in William's response to the amended proffer, the record is incomplete and unreliable. (Document 1903 at 13-18). Even the direct testimony of Mr. Ono is missing. The fundamental unfairness of using such an unreliable record is exacerbated by the government's highly selective and biased presentation of it, despite its claim that the penalty phase is to determine "the truth about the defendant's character and conduct." (Document 1908 at 6). As an example of its "truth", the government's proffer excludes the testimony of the refreshment cart operator, an eyewitness to the robbery, who testified that no knife was brandished, the robber only threw a stick. It also excludes the testimony that reflects that searches were conducted and property was recovered, but no knife was ever found. This Court has stated that "the parties should be precluded from relitigating the merits underlying the convictions." (Document 1836 at 26). That,
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however, will inevitably occur if the government is allowed to proceed as proposed. Prior Statements of Other Government Witnesses It has been an historical problem in this case that the government has treated the Court's orders for production like discovery requests. The purpose behind the Court's orders, however, was to allow it to see the government's proposed evidence for purposes of evaluating its relevance and reliability and determining if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury. The government's obligations under those orders are independent of its obligations under Fed. R. Crim. P. 16 and Brady. The government's proffer for the upcoming hearing includes a multitude of FBI 302's, Saipan police reports, and BOP incident reports and memos that reflect prior statements of witnesses it anticipates calling to testify. For example, in relation to CNMI Case No. 96-235, the government's amended proffer includes general descriptions of the testimony of six Saipan law enforcement officers ­ Stephen, Sala, J. Seman, A. Seman, Aldan, Somol ­ yet its exhibits include prior statements of all of them. (Document 1884 at 11-15; Gov. Exh.'s 3I (Aldan), 3J (Stephen), 3K (J. Seman), 3L (A. Seman), 3M (Somol)). Although it was obligated to provide these prior statements to the defense in discovery, their inclusion in the proffer is confusing. Is the government intending to use them only for purposes of the November hearing in order to assist the Court in ruling on the relevancy and reliability of the underlying conviction? If so, a 302 generated after the NOI was filed hardly provides much reassurance as to its relevance and reliability. For
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example, the 302's of Stephen, Sala, J. Seman, A. Seman, Aldan, and Somol were all generated in June, 2006 whereas the initial NOI was filed in May 1, 2001. Or is the government intending to offer these prior statements into evidence at the penalty phase? If so, it has not articulated a theory of admissibility.5 See, e.g., Fed. R. Evid. 613(b) (if a witness is given the opportunity to deny or explain it, a prior inconsistent statement is admissible); Fed. R. Evid. 801(d)(1) (a prior consistent statement of a declarant is not hearsay if it is consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive). Although § 3593(c) of the FDPA states that the rules of evidence do not apply to the sentencing hearing, multiple presentations of the same evidence, albeit in different forms, are nonetheless excludable. Such cumulative evidence causes it to be unduly emphasized, thereby misleading the jury as to its proper focus and creating unfair prejudice. New Information in The Government's Amended Proffer The government concluded its amended proffer by stating that the proffer represents its "best estimate at this time of the evidence it intends to offer" . . . [but] reserves the right . . . to seek leave of the Court to further supplement this proffer as necessary prior to the [Phase III] hearing or the trial." (Document 1884 at 36) (emphasis added). This statement totally disregards the Court's stated intent to resolve penalty

If the declarant testifies, Crawford does not alter the ability of either party to use his prior inconsistent testimonial statements. Crawford, 541 U.S. at 59 n. 9. 13

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phase evidentiary issues well before trial. (4/11/06 Status Conference Tr. at 4). Its disregard of the Court's intent has been further demonstrated by its October 24, 2006 delivery to the defense of 16 (90-minute) audiotapes relating to CNMI Case No. 8549, presumably because it hopes to offer portions of it during the penalty phase. Whereas its amended proffer reflected that the "audio tapes cannot be located, " apparently they have belatedly been found. (Document 1884 at 9). This has got to stop! The government cannot be allowed to continuously expand its penalty-phase evidence. If the January, 2007 trial date is to remain viable, we cannot litigate penalty phase issues endlessly. It would be totally appropriate if the Court were to strike all new information included in the amended proffer, (as well as the 85-49 audiotapes, if proffered). The new amended proffer included the following new information:

! "Judgment in Civil Action 85-489, Commonwealth Trial Court, CNMI, dated
November 25, 1987" and "Receipts for Payment of Restitution to Vic Pangelinan" relating to CNMI 84-69 (Document 1884 at 5; Gov. Exh.'s 1E and 1D)

! "direct testimony of witness Juan Diaz" relating to CNMI 96-235 (Document
1884 at 10; Gov. Exh. 3G-1)

! the following statements relating to the statutory aggravating factor based on
U.S. District Court case 99-00018: · "Statement of Filipino Detainee Saddy Camaso Cuarten" (Document 1884 at 32) · "Statement of Chinese Detainee Cui Xing Hao" (Document 1884 at 33)
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· "Statement of Detainee Luis Deleon Guerrero Camacho" (Document 1884 at 34) Conclusion William maintains his previously stated position that all of the incidents alleged in support of future dangerousness should be stricken. In addition to the challenges he has made to each incident individually, he submits for purposes of this pleading that the Court can reach the same result from a broader perspective.

! The Court has already ruled that future dangerousness must be evaluated in the
context of life in a prison setting. Therefore, the following four non-institutional setting incidents should be stricken as insufficiently related to future dangerousness in a prison setting: · NOI ¶ C 1, (a) relating to CNMI convictions in Case No. 84-69, which is listed in the amended proffer as # 1 · NOI ¶ C 1, (b) relating to CNMI conviction in Case No. 84-68, which is listed in the amended proffer as # 2 · NOI ¶ C 1 (c) relating to CNMI conviction in Case No. 85-49, which is listed in the amended proffer as # 3 · NOI ¶ C 1 (d) relating to CNMI conviction in Case No. 96-235, which is listed in the amended proffer as # 4.

! The non-institutional setting incidents listed above, as well as NOI ¶ C 1(e) (an
institutional setting incident) are also prior CNMI convictions. The government has
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proffered evidence that presents a myriad of constitutional and evidentiary issues because it goes beyond the fact of the conviction. William has requested the Court to reconsider its denial of a categorical approach to the proof of prior convictions, if the motion is granted these issues will be eliminated.

! Rather than imposing a per se rule, the Court has ruled that it would evaluate the
relevancy of the institutional setting incidents alleging rule violations rather than criminal conduct in the context of the government's presentation at this hearing. The following seven institutional setting incidents should be stricken as insufficiently related to future dangerousness in a prison setting in that they involved no criminal conduct and/or the conduct did not constitute a serious threat to the lives and safety of others: · NOI ¶ C 1 (f) destroying/altering a security device, which is listed in the amended proffer as # 6 · NOI ¶ C 1 (g) threatening another with bodily harm, which is listed in the amended proffer as # 7 · NOI ¶ C 1 (h) ramming a cell door with a desk / threatening another with bodily harm, which is listed in the amended proffer as # 8 · NOI ¶ C 1 (i) threatening another with bodily harm, which is listed in the amended proffer as # 9 · NOI ¶ C 1 (j) throwing coffee / threatening another with bodily harm which is listed in the amended proffer as # 10 · NOI ¶ C 1 (k) assault / refusing to obey an order, which is listed in the
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amended proffer as # 11 · NOI ¶ C 1 (l) threatening staff / tempering or interfering with any security device / failure to follow safety regulations, which is listed in the amended proffer as # 12

! NOI ¶ C 1 (e), listed in the amended proffer as # 5 should be dismissed for the
reasons stated in footnote # 2 and in William's prior responses. (Documents 1861; 1903). Dated: November 1, 2006 Respectfully submitted, Patrick J. Burke Patrick J. Burke P.C. 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 By: /s/ Susan L. Foreman Susan L. Foreman 1660 Wynkoop Street, Suite 810 Denver, CO 80202 303-825-3050 Counsel for William Sablan Nathan Chambers Chambers, Dansky & Mulvahill 1601Blake Street, Suite 300 Denver, CO 80202 303-825-2222

CERTIFICATE OF SERVICE I hereby certify that on November 1, 2006, I electronically filed the foregoing William Sablan's Memorandum Brief Regarding The Phase III hearing Scheduled For November 6-9, 2006 with the Clerk of the Court using the CM/EFC system which will send notification of such filing to the following e-mail addresses: [email protected]
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[email protected] [email protected] [email protected] By: /s/Susan L. Foreman

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